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Monday, 22 June 2015
Page: 4026

Senator IAN MACDONALD (Queensland) (12:57): Isn't the Senate lucky that we have got someone with Senator Ludlam's expertise here to help us with this bill! Nobody else, apart from Senator Ludlam, understands this! Everybody else has got it wrong and only Senator Ludlam is correct! Because this is recorded in Hansard, can I just say to Hansard: this is said with irony, because I certainly don't believe it—but Senator Ludlam clearly does. Everybody else who has spent a lot of time and work on this is, according to Senator Ludlam, lazy. It is only Senator Ludlam who knows and understands these issues!

This is a complex area. I contributed to this bill, the Copyright Amendment (Online Infringement) Bill 2015, as the chairman of the Legal and Constitutional Affairs Legislation Committee, which looked at this bill in some detail. And I recognise the work done by Senator Collins, and it was quite considerable, and my colleague Senator O'Sullivan, which formed the basis of the intense investigation into this bill.

Senator Ludlam got himself put on the committee so that he could contribute his expertise, but, regrettably, when it came to the hearing, Senator Ludlam was nowhere to be seen. So he did not bother to turn up and question witnesses—because he knows it all! He knew what their answers would be! Now he chooses to come in here and accuse everyone else who has spent a lot of time on this of being 'lazy'. But I have confidence, first of all, in my committee, and, clearly, in the Department of Communications and the Attorney-General's Department, who have put a lot of work into this very important area.

Online copyright infringement does pose a significant threat to the viability and success of Australia's creative industries. Infringement currently occurs on a large scale. Therefore, rights holders need effective mechanisms to reduce the incentive for infringing practices. The committee came to that view after investigation, and I want to thank Senator Collins and Senator O'Sullivan, who carried the brunt of this work. I also recognise the secretariat staff who, as always, put an exemplary effort into considering all of these bills, looking at the submissions to make sure every i is dotted and every t is crossed in sentences and assisting the committee in the recommendations that it brings to the parliament.

I take some pride in the fact that this is a committee that does not hesitate to recommend amendments to government legislation or, at times, even to recommend against the bills. This is a committee that treats its work as a committee of parliament very seriously, and this is the case in this particular reference. I alert the Senate to the committee's report, and I recommend the committee's report for anyone who wants to follow this issue. It is a balanced report. It sets out the key issues and the background and then gives the committee's view on the bill and on recommendations that the committee might make. For anyone interested in this subject, have a good read of the report. Although it is a complex area, readers will then know a little bit more about it.

The committee did consider that proposed section 115A(5) of the bill may be too prescriptive in requiring a court to consider all the listed matters in every application for injunctive relief. The committee took the view that the court should be able to exercise discretion in identifying the salient features of each matter on a case-by-case basis, so the committee made the recommendation that the bill should be amended to provide for that. I am delighted to say that, in the other chamber, the government did accept the recommendation and amended the bill, and it passed with that amendment. I am delighted that the government has looked at that.

As a committee, we acknowledge the evidence given by the Department of Communications regarding VPNs. But the committee noted that the bill does not explicitly contemplate the introduction of injunctions against VPNs. The committee also notes that VPNs are unlikely to meet the primary purpose test that is proposed in proposed sections 115A(1)(a) to (c). However, the committee would be reassured if the government were to clarify the status of the VPNs in the explanatory memorandum, and I understand that the government has done that.

The committee also recommended that the explanatory memorandum be amended to specify that 'reasonable steps to disable access to an online location' may include a requirement to post a landing page at the blocked online location specifying the relevant online location has been blocked by order of a court and outlining details of the order. That came about as a result of submissions made to the committee by those in the industry who pointed out that that was an important part of the process.

The committee also noted that the bill was preceded by a regulatory impact statement but no formal cost-benefit analysis and, as such, the committee received no information that provided a comparison between the expected benefits to rights holders and the potential cost to other parties. Although this did not affect the committee's ability to determine the merits of the proposed legislation, it does lead the committee to give consideration to the recommendation of the Internet Society of Australia. They said in their submission that the government should review the effectiveness of the bill one year after its enactment and that the review should include the number of sites and locations blocked, the number of sites and locations that continue to provide access to the alleged infringing material, the cost to CSPs of implementing requirements of the bill and the practical effectiveness and ease of bypass of the methods used to implement blocking.

Some of the matters raised by our expert senator—Senator Ludlam—in his address previously could be looked at and some actual data obtained. The committee recommended that government conduct a formal review of the effectiveness of the act, to be completed two years after its enactment. That is a recommendation that I do think makes some sense. It was mentioned by some of the submitters, and the committee accepts that view.

There was a lot of evidence on the costs to various parties. The committee took the view that the question of costs should be a matter for the court to determine on a case-by-case basis. The committee notes that, in the absence of malice, a nonparty to proceedings would not normally be liable for costs. As such, the committee questioned the utility of the proposed section 115A(9), which, in the opinion of the committee, serves only to confuse the issue of costs. There was evidence from the Communications Alliance—I think it was—on this aspect. It was something that the committee looked at quite closely. We did note the persuasive evidence of service providers to the effect that a CSP bears no fault or liability for the infringement of copyright by its subscribers and, because of that, the CSP should not be required to contribute to the cost of the remedy. The committee was of the view that more clarity is required to reassure CSPs that the costs associated with site blocking will primarily be borne by those parties who are actually seeking the remedy.

Finally, in noting that compelling evidence regarding the need to indemnify a CSP for acts done or admitted to be done in compliance with court orders, the committee had some regard to the reasoning of Justice Perram in the Dallas Buyers Club v iiNet case, but urges the government to provide greater clarity on the issue of the CSP indemnity from consequential actions. Accordingly, the committee recommended that the explanatory memorandum be amended to provide greater clarity and guidance on the issue of service provider cost and liability subsequent to the service provider's compliance with court orders made under the proposed amendment to section 115A. I understand the government has done that and, with those qualifications, the committee recommended that the bill be passed—even if, according to Senator Ludlam, it is completely useless and of no benefit. Those who attended the hearing, those witnesses who gave evidence, the two departments and many other people are, dare I say, as versed and as knowledgeable as Senator Ludlam—although from what I hear Senator Ludlam say, that would not apply to anyone in the world. But I go on the side of the vast majority of experts, who agree with the committee that the bill should be passed.

In concluding, can I thank all of those who took the time to make a submission to the committee to make sure their views were considered before the matter came to parliament. I thank those committee members who actually turned up—which, I repeat, does not include Senator Ludlam, who knew so much that he did not need to bother attending the committee. And can I again thank the secretariat staff who, as usual, produced an excellent paper on the subject that encapsulates the committee's views. I urge that the bill be passed.